This case is before us on remand from
the Supreme Court, which vacated our prior decision, State v. Mitchell,
206 Or App 586, 138 P3d 60 (2006), in light of State v. Ramirez, 343 Or
505, 173 P3d 817 (2007), adh'd to as modified on recons, 344 Or 195, 179
P3d 673 (2008), and State v. Fults, 343 Or 515, 173 P3d 822 (2007). State
v. Mitchell, 345 Or 175, 190 P3d 1237 (2008). In Mitchell I, we
vacated defendant's sentences and remanded for resentencing because the trial
court had imposed departure sentences based on judicial findings that defendant
was persistently involved in similar offenses. That factfinding constituted
plain error, and we exercised our discretion to correct it. The issue before
us on remand is whether, in light of Ramirez and Fults, we
properly exercised our discretion under Ailes v. Portland Meadows,Inc.,
312 Or 376, 381-82, 823 P2d 956 (1991). We conclude that our exercise of
discretion in Mitchell I was erroneous. Accordingly, we affirm.

Defendant was convicted of attempted
first-degree burglary, menacing, and telephonic harassment. The trial court
imposed a durational departure sentence of 32 months' imprisonment on the
attempted first-degree burglary conviction. The court gave the following
reasons for the departure:

"It will be the judgment of the court that
on the Attempted Burglary you be sentenced to 32 months in the penitentiary.
And, the Court's finding [of] persistent involvement in a similar -- this was
an attempt to commit an assaultive type offense. And, there are plenty of
other assaultive type offenses in here that certainly justify a departure.
Your criminal history isn't even of itself adequately reflected in the guidelines,
23 convictions. So, there's another reason to depart.

"* * * [Y]our criminal record isn't truly
reflected in these guidelines because it doesn't take into account all the
non-person felonies. It just looks at -- it just looks at the person misdemeanors
that you've got eight of those, seven at least which puts you over there.

"So I'm going to sentence you to 32 months
which is a double departure -- double the sentence that the guidelines call for
what we're allowed to do."

In State v. Ramirez, 205 Or
App 113, 123, 133 P3d 343, adh'd to on recons, 207 Or App 1, 139 P3d 981
(2006), rev'd on other grounds, 343 Or 505, 173 P3d 817 (2007), adh'd
to as modified on recons, 344 Or 195, 179 P3d 673 (2008), we concluded that
the imposition of a departure sentence under circumstances similar to the
imposition of the departure sentence in this case, that is, where the defendant
stood silent during sentencing but had not explicitly waived his or her rights
to a jury trial on at least one of the charged offenses, constituted plain
error. Although the Supreme Court reversed our decision in Ramirez on
the ground that we did not properly exercise our discretion in determining
whether to correct the error, the court did not disturb our conclusion that the
error was plain. The state urges us to reconsider that conclusion. However,
we decline to do so.

The question remains whether we
should exercise our discretion to correct the error in this case. The state
argues that we should decline to exercise our discretion because there is
"no legitimate debate" that a jury would have found the departure
factor relied on by the trial court. Cf.Ramirez, 343 Or at 513
(if there is no legitimate debate about the existence of a sentence enhancement
fact, the defendant's interest in a second sentencing hearing is minimal). We
agree.

In this case, the trial court did not
explicitly state that it was relying on the departure factors it found either
singly or in combination, and we therefore assume that the court did not
consider each factor to be independently sufficient to support a departure. State
v. Wilson, 111 Or App 147, 826 P2d 1010 (1992). Thus, remand for
resentencing may be warranted if either of the factors relied on by the trial
court is subject to legitimate debate.

In State v. Bray, 342 Or 711,
724, 160 P3d 983 (2007), the Supreme Court held that "'[p]ersistent
involvement in similar offenses' presents a factual issue that * * * a
defendant may insist that a jury find beyond a reasonable doubt." The
court explained:

"In determining whether the record establishes '[p]ersistent
involvement in similar offenses,' a sentencing court must do more than find
that a defendant has two or more prior convictions for similar offenses. The
trier of fact must infer from the number and frequency of those prior
convictions whether the defendant's involvement in those offenses is
'persistent'; that is, the trier of fact must determine whether the defendant's
involvement in similar offenses is sufficiently continuous or recurring to say
that it is 'persistent.'"

Id. (brackets in original). There is "no
legitimate debate" that a jury would have found the departure factor where
evidence in support of that factor was "overwhelming." Ramirez,
343 Or at 313-14. Thus, to establish that there is no legitimate debate that a
defendant was persistently involved in similar offenses, the evidence adduced
at trial and sentencing not only must establish that the defendant had two or
more prior convictions, but also must support--indeed, to be
"overwhelming" it must require--the inference that the defendant's
involvement was sufficiently continuous or recurring to say that it was
"persistent."

On this record, we conclude that
there is no legitimate debate that the jury would have found defendant to have
been persistently involved in similar offenses. Defendant was convicted of
attempted first-degree burglary after he broke into a dwelling with the intent
to commit the offenses of menacing and harassment therein. Among defendant's
23 prior convictions were four convictions for assault in the fourth degree in
1993 and a fifth conviction for the same offense in 2003. Defendant was
sentenced in this case in 2004. That evidence is overwhelming in terms of both
the number and the frequency of defendant's prior convictions for similar
offenses and thus compels the inference that defendant possessed the requisite
"persistence" to justify imposition of a departure sentence.

We turn to the second departure
factor, that defendant's "criminal history of itself isn't even adequately
reflected in the guidelines[.]" Read in the context of the colloquy
between the court and defendant regarding defendant's extensive criminal
history, it is apparent that the court believed that a criminal history score
of "A" (requiring three "person" felonies) on the
sentencing grid did not adequately reflect the seriousness of defendant's
criminal history, which consisted of 23 convictions over a 22-year period. As
the court told defendant:

"Do you know how many people actually come
into this Court in the 'A' category? Maybe a handful. I mean, you are in the
worst category. * * *

"* * * * *

"* * * You have a conviction for every year
of your life since age 18 if you average it out."

The departure factors set out in the
sentencing guidelines are nonexclusive and where, as here, a court relies on
reasons not set out in an enumerated departure factor, "[t]he key question
[becomes] whether the stated reasons constitute substantial and compelling
reasons to depart from the presumptive sentence." State v. Rhoades,
210 Or App 280, 285, 149 P3d 1259 (2006). "In determining whether a
factor constitutes a substantial and compelling reason for departure, we
[examine] whether 'exceptional circumstances [exist that] overcome the
presumption that the [presumptive] sentence accomplishes the purposes of the
guidelines.'" Id. at 284-85 (citing State v. Parsons, 135
Or App 188, 191, 897 P2d 1197, rev den, 322 Or 168 (1995)). In the
context of deciding whether to exercise our discretion under Ramirez,
the pertinent inquiry becomes whether the evidence in the record supporting the
trial court's finding of exceptional circumstances justifying departure is so
"overwhelming" that "there is no legitimate debate" that
those circumstances would have been found by the jury. Ramirez, 343 Or at
513.

On this record, we conclude that
there is no legitimate debate that the jury would have found that defendant's
criminal history was not adequately captured by his classification as a
category "A" offender. To qualify as a category "A"
offender, the offender's criminal history must include "three or more
person felonies in any combination of adult convictions or juvenile
adjudications." OAR 213-004-0007. Here, defendant had four person
felonies, as well as eight class-A misdemeanor person crimes which, for
purposes of the sentencing grid, are considered equal to four person felonies.
OAR 213-004-0008. Thus, defendant had nearly three times the number of
required crimes to justify his placement in category "A," as well as
another 11 convictions that were not taken into account in the grid
calculation. The evidence of defendant's criminal history was uncontroverted,
and, in our opinion, overwhelming. Accordingly, we decline to exercise our
discretion to review the assigned error.